The Ministry of Justice introduced a bill to Parliament on June 13,[1] which mainly restructures the administrative and civil supreme courts in Turkey.

The “Bill on Amendments to the Law of the Council of State and Other Laws” (Danıştay Kanunu ile Bazı Kanunlarda Değişiklik Yapılmasına Dair Kanun Tasarısı),[2] purports to be aimed at adapting the judiciary to the launch of regional appellate courts. Accordingly, the number of chambers in these two supreme courts, namely Danıştay (the Council of State) and Yargıtay (the Court of Cassation), are considerably reduced, as the Ministry predicts that their workload will be cut down by 80% to 90%.[3] While the eventual launch of regional appellate courts might be welcome following a more than a decade-long stall after initial legislation establishing them[4], and a necessary adjustment justifiable, the bill seems to fuel the serious concerns as to the independence of the judiciary and the rule of law in Turkey generally, as it introduces largely controversial and possibly unconstitutional reforms. Although this is another omnibus bill containing several problematic provisions, I restrict my analysis in this post to the most imminently worrying proposal—the dismissal of supreme court judges.

Rather unsurprisingly, judicial appointments in Turkey have been a political battlefield. The governing AKP (Adalet ve Kalkınma Partisi) had often accused the judiciary of militant application of the Kemalist ideology.[5] Yet there have been sharp shifts in the stance of the judiciary over the past decade with reforms to the structures of supreme courts and judicial appointment mechanisms. During this period, President Erdoğan and the AKP have been increasingly accused of counter-politicising the judiciary, making arbitrary judicial appointments, and setting up ad hoc courts[6] to persecute dissidents.[7] There is a general sentiment now in Turkey, especially after the victory of AKP-backed Yargıda Birlik Platformu (Platform of Union in Judiciary) in the HSYK (Supreme Council of Judges and Prosecutors) elections in 2014, that the judiciary coming more and more under the influence of the President and the AKP. The reforms proposed in this latest bill do little to alleviate this worry.

The bill decreases the number of chambers in Danıştay from 17 to 10 and judges from 195 to 90, the number of chambers in Yargıtay from 46 to 24 and judges from 516 to 200, limits these judges’ term of office to 12 years, introduces an oral exam in addition to the written exam for judgeship and prosecutorial office, and launches a system of assessment whereby Danıştay and Yargıtay will evaluate the lower court judgments they review.

Arguably, the most controversial proposal is to strip nearly all the current members of Danıştay and Yargıtay of their duties while shrinking these courts. The bill provides that upon its coming into force, all Danıştay members are removed from office, except for its president, chief public prosecutor, vice presidents, and presidents of chambers. Likewise, all Yargıtay members are removed from office, except for its first president, chief public prosecutor, deputy first presidents, deputy chief public prosecutors, and presidents of chambers. Eventually, this amounts to the potential unseating of 639 supreme court judges, 174 in Danıştay and 465 in Yargıtay. The seats are then to be filled by the President’s direct appointment (a quarter of the seats in Danıştay) and the HSYK (the rest of the seats in Danıştay and all seats in Yargıtay) within five days of the bill’s coming into force. Most of the deposed judges are expected to be reassigned to lower courts across the country. Furthermore, as the YSK (the Supreme Board of Election), the body responsible for the administration and judicial oversight of elections, consist of six Yargıtay and five Danıştay members, it will be automatically dissolved and its new members will be elected from the two newly formed supreme courts. It is with this unprecedented dismissal that the bill is vehemently criticised as being “the final nail in the coffin” of the independence of Turkish judiciary and regarded as grossly unconstitutional.[8]

Recently, the trend of the “transfer of judges against their will” has been a persistent criticism voiced against Turkey.[9] Especially since the corruption probes against four AKP ministers in December 2013, there have been massive reshuffles of judges and prosecutors,[10] and two criminal court judges have even been arrested. Yet the dismissal of nearly all supreme court judges seems to be the most audacious of all “transfer of judges”. With respect to this move, the government states in its report that in the Constitution there is no specific security of tenure of supreme court judges in addition to the general security of tenure of judges and that, therefore, as long as they are reassigned elsewhere as judges, there is no breach of the security of tenure.

Although the Turkish Constitution does not explicitly mention any specific protection for supreme court judges, it grants them a distinct status as it refers to them individually as ‘Yargıtay members’ (Article 154) and ‘Danıştay members’ (Article 155), and collectively as “members of higher judicial organs” alongside other “judges and prosecutors” (Articles 68, 76). This suggests that these are two different statuses and that dismissing and reassigning supreme court judges to lower courts is an instance of status change and downgrading.

The government has failed to explain how the blanket dismissal and potential downgrading of judges to lower courts are compatible with the constitutional principles of the rule of law (Article 2), the independence of the judiciary (Articles 9, 138, 140, 154/5, 155/5, 159/1), and indeed with the security of tenure (Articles 139, 140).[11]

There is a highly likely prospect[12] that the bill will be brought before the Constitutional Court for annulment, but even if this most controversial part of the bill is found to be unconstitutional and struck down by the Court, which can only review legislation ex post, it will be of no effect as to the dismissals and appointments of judges, as the decisions of the Constitutional Court do not bear retroactive effect.[13] The Court may go further than invalidating the provisions and regard them “null and void”,[14] which would not only invalidate the provisions but also all their effects from the moment of enactment. However, the Court has never delivered such a judgment in its history and it is disputed whether it has the constitutional authority to do so. Eventually, by creating two supreme courts with judges assigned all at once by the executive and the HSYK, the bill seems to practically vindicate the mounting concerns regarding the independence of the judiciary in Turkey.

[3] This is a fairly dubious argument especially for administrative courts, as regional appellate courts are already in operation in the administrative judicial system, and the reforms in this bill concerning administrative courts are as to the jurisdictions of these courts and Danıştay.

[4] Law No. 5235, enacted in 2004, was the initial legislation establishing the civil regional appellate courts. There have been amendments to the initial setting, most notably in the Law of Civil Procedure, enacted in 2011.

[11] In the similar recent Polish case, the Venice Commission criticised the provision that enables the Sejm to depose judges of the constitutional court. Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland, 11 March 2016, Opinion no. 833/2015, CDL-AD(2016)001, para. 94, http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)001-e

2 Responses

The bill was adopted by Parliament around midnight on June 30 and will come into force upon promulgation by the President. Immediately after the adoption of the bill, the CHP have applied to the Constitutional Court for annulment. The CHP also state that they will renew their application following the promulgation of the law, as the Constitutional Court is expected to reject any case brought before promulgation, as per Article 151 of the Constitution.

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